Carrington v. Commissioner of Educ.

• Decision Date: 13 March 1989
• Citation: 404 Mass. 290,535 N.E.2d 212
• Parties: , 52 Ed. Law Rep. 209 Jeffrey CARRINGTON, Jr., 1 v. COMMISSIONER OF EDUCATION et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 212

535 N.E.2d 212

404 Mass. 290, 52 Ed. Law Rep. 209

Jeffrey CARRINGTON, Jr., ¹ v. COMMISSIONER OF EDUCATION et al. ²

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Oct. 5, 1988.

Decided March 13, 1989.

Ellen B. Kaplan, Springfield, for plaintiffs.

Charles A. Collins, East Longmeadow, for School Committee of East Longmeadow.

Alice E. Moore, Asst. Atty. Gen., for Com'r of Educ.

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

This case arises under the Education of the Handicapped Act, 20 U.S.C. § 1400 et seq. (1982), and the Commonwealth's Children With Special Needs statute, G.L. c. 71B, inserted by St.1972, c. 766, § 11, popularly known as Chapter 766. The issue on review is whether, in the circumstances of this case, the parents of a minor child in need of special education may be entitled to reimbursement for the cost of the child's education in a private residential school during the pendency of administrative proceedings to determine an appropriate educational program for the child. The relevant circumstances are set out in the course of this opinion.

The Education of the Handicapped Act was enacted "to assure that all handicapped children have available to them ... a free appropriate public education ... designed to meet their unique needs...." 20 U.S.C. § 1400(c) (1982). The Act provides also that handicapped children should be educated with nonhandicapped children "to the maximum extent appropriate," that is, in the least restrictive feasible setting. § 1412(5)(B). The Act sets forth substantive and procedural requirements with which States wishing to receive Federal funds must comply. §§ 1413, 1415.

The Massachusetts statute implementing the Federal Act is G.L. c. 71B. Chapter 71B, § 3, provides in part that "the school committee of every city, town or school district shall identify the school age children residing therein who have special needs, diagnose and evaluate the needs of such children, [and] propose a special education program.... The parents ... may refuse the education program suggested by the initial evaluation and request [a] hearing by the [Department of Education] into the evaluation of the child and the appropriate education program...." The department may recommend alternative placements and "parents ... may either consent to or reject such proposals." If the parents reject the department's recommended placement, "the matter shall be referred to the state advisory commission on special education ... regarding the placement of the child."

During the 1980-1981 school year, Jeffrey Carrington, Jr., attended a day school program as set forth in an Individualized Educational Plan proposed by the defendant school committee of East Longmeadow (school committee), and agreed to by his parents. For the 1981-1982 school year, the school committee prepared a new Individualized Educational Plan providing that Jeffrey continue his education at the same day school. His parents rejected that proposal and requested that Jeffrey be placed in a residential program at the Devereaux School in Scottsdale, Arizona. The parents and the school committee were unable to reach agreement on an Individualized Educational Plan before the school year began.

In September, 1981, Jeffrey again began the school year at the day school recommended by the school committee. His parents then requested a determination from the Bureau of Special Education Appeals, a bureau within the Division of Special Education of the Department of Education, as to whether the school committee's recommended Individualized Educational Plan, providing that Jeffrey remain in day school, was "the least restrictive adequate and appropriate educational placement" for Jeffrey or, instead, residential school placement was required.

The Bureau of Special Education Appeals held three hearings. On January 21, 1982, the day after the last hearing, the parents removed Jeffrey from the day school and enrolled him in the Devereaux School in Scottsdale. On March 19, 1982, the Bureau of Special Education Appeals issued its decision that the school committee's plan was the least restrictive adequate and appropriate educational placement for Jeffrey. The parents appealed to the State Advisory Commission on Special Education pursuant to G.L. c. 71B, § 3. On July 13, 1982, after concluding that Jeffrey had not made sufficient progress in his day school and that the school committee's plan was not adequate and appropriate, the State Advisory Commission reversed the decision of the Bureau of Special Education Appeals and remanded the matter to the bureau for further hearings to determine the least restrictive adequate and appropriate program for Jeffrey.

After such a hearing, the bureau issued a decision on April 11, 1983, that "Jeffrey is entitled under law to a [residential] placement in a c. 766 approved educational placement that provides the services by which he progressed in his Devereaux (Arizona) placement," and ordered the school committee to submit names of such a placement to the parents. However, the bureau, by its hearing officer, denied the parents' request for reimbursement for the costs of Jeffrey's Devereaux placement "insofar as Devereaux (Arizona) is not a c. 766 approved school." The hearing officer denied reimbursement because of a Department of Education regulation that stated that "[t]he hearing officer may not specify a day school ... or a residential school ... program for a child unless the program is approved under Chapter 8 [now 603 Code Mass.Regs. § 18.00 (1986) ] of these regulations." On May 20, 1983, Jeffrey's parents removed him from the Arizona school. Pursuant to an Individualized Educational Plan agreed to by the parents and the school committee, Jeffrey began a residential program in Framingham, Massachusetts, on June 21, 1983.

The plaintiffs commenced this action in May, 1983, seeking judicial review of so much of the bureau's decision as denied the parents' request for reimbursement for the expenses of educating Jeffrey at the Devereaux School in Scottsdale, Arizona, during the pendency of the administrative proceedings. In February, 1987, the defendant Commissioner of Education moved that the case be remanded to the Bureau of Special Education Appeals for the bureau's resolution of the question whether the parents were entitled to reimbursement. By that time, the United States Supreme Court had decided School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). In Burlington the Supreme Court held that the Education of the Handicapped Act authorizes reimbursement of parents "for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed [Individualized Educational Plan], is proper under the Act." Id. at 369, 105 S.Ct. at 2002.

In support of his motion for remand, the defendant Commissioner stated as follows: "[I]t is the policy of the [Bureau of Special Education Appeals] to award reimbursement consistent with the standards set forth in School Comm. of Burlington v. Department of Education, [supra ]. It appears from a review of the administrative record that the appropriate considerations were not focused on by the parties or the hearing officer at the original administrative hearing, which primarily concerned the appropriate educational placement for Jeffrey. It further appears that additional evidence bearing on the question of reimbursement should be developed for proper resolution of this question. As this case has been brought under G.L. c. 30A, § 14, the factual record must be developed before the administrative agency rather than the Superior Court."

Before any action was taken on the Commissioner's remand motion, the plaintiffs moved for summary judgment ordering the defendants to reimburse them for Jeffrey's educational costs "or in the alternative for remand to the [Bureau of Special Education Appeals] in accordance with the State Defendant's Motion to Remand the Case...." The school committee also moved for summary judgment in its favor. A judge denied the plaintiffs' motion and allowed the defendants' motion. Relying on Amherst-Pelham Regional School Comm. v. Department of Educ., 376 Mass. 480, 482, 381 N.E.2d 922 (1978), the judge concluded, as had the bureau hearing officer, that reimbursement was not authorized because Jeffrey's placement was not at a...